Writ of habeas data

In a speech delivered on November 19, 2007 during the UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine Supreme Court Chief Justice Reynato Puno took the opportunity to discuss the legal history of the Writ of Habeas Data, the latest legal instrument adopted by the Supreme Court to protect the basic human rights of the Filipino people in the midst of the cruelty, abuses and acts of hate and impunity committed by Philippine military and police personnel against unarmed and helpless leftist and cause-oriented peasant, labor and student leaders in the poverty-stricken towns and cities of the Philippines.

Puno said that the first and perhaps most famous of the legal instruments for the protection of peoples throughout the world was the petition for a writ of habeas corpus, roughly translated, “You should have the body.”

The writ of habeas corpus was a guarantee against deprivation of liberty of a person. It originated in the Middle Ages in England, recognized in the several versions of the Magna Carta, so that a person held in custody was brought before a judge or court to determine whether the detention is lawful or otherwise.

Aside from the writ of habeas corpus, in the United States, the writs of mandamus, prohibition, and certiorari are used to command a governmental agency to perform a ministerial function, prohibit the commission of an illegal act, or correct an erroneous act committed with grave abuse of discretion, Puno said.

He added that in the Latin American countries, particularly Mexico and Argentina, they crafted the writ of amparo which protects a whole gamut of constitutional rights and that in Taiwan, they have the writ of respondeat superior that makes a superior liable for the acts of the subordinate.

The most recent legal mechanism was the writ of habeas data, according to Puno.

The habeas corpus writ has been used for more than five centuries now. The writ of amparo has been used in Mexico in mid-19th century. Compared to those two, the writ of habeas data has a very short history. The writ of habeas corpus can be traced way back to as early as 1215 in the United Kingdom and subsequently codified in 1679; the writ of amparo first appeared in the State of Yucatan in 1841 and later in the Federal Constitution of Mexico in 1857. The roots of the writ of habeas data can be traced to the Council of Europe’s 108th Convention on Data Protection of 1981, Puno stated.

The writof habeas data as “a procedure designed to safeguard individual freedom from abuse in the information age”, he added. The European Data Protection Convention of 1981 was convened to develop safeguards to secure the privacy of the individual by way of regulating the processing of personal information or data. In countries like Germany, the use of the writ of habeas data was justified by invoking “the people’s right to individual self-determination”. In Latin American countries, however, it found use “as an aid in solving their perennial problem of protecting the individual against human rights abuses”, he continued.

Looking at the landscape of several Latin American countries, one will find that the writ of habeas data has been embedded as a direct constitutional right. In general, “it is designed to protect – by means of an individual complaint presented to a constitutional court – the image, privacy, honor, information self-determination and freedom of information of a person”, he stated.

The first Latin American country to adopt the writ of habeas data is the Federal Republic of Brazil. In 1988, the Brazilian legislature voted a new Constitution, which included a novel right: the right to initiate a habeas data complaint on the part of a citizen. It is expressed as a full constitutional right under Article 5, Title II of the 1988 Brazilian Constitution:

“Habeas Data shall be granted: (1) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; (2) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.”

This constitutional provision was further bolstered by Brazil’s National Congress in a 1997 regulatory law (Congreso Nacional de Brasil, Lei 9507).

Following the Brazilian example, Colombia incorporated the habeas data right in its 1991 Constitution. The 1991 Colombian Constitution, as reformulated in the 1997 version, recognizes the right to “individual privacy” and recognizes that the citizens shall have “the right to know, access, update and rectify any information gathered about them in databases, both public and private.” In due time, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996, Puno said.

The 1992 Paraguay Constitution follows the model set by Brazil, but has a stronger protection. Article 135 of the Paraguayan Constitution provides:

“Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong of if they are illegitimately affecting his rights.”

Puno stressed that aside from giving individuals the right to find out what information is being kept about them, the writ of habeas data seeks to protect the right to find out what use and for what purpose such data are being collected. The petitioner is also given the opportunity to question the data and demand their

“updating, rectification, or destruction.”

The Peruvian Constitution also recognizes the writ of habeas data. In Article 200, Section 3 of the Constitution of Peru, a similar provision much like Brazil’s and Paraguay’s can be found. More than that, their legislature was quick enough to provide for a regulatory law that took effect on April 18, 1995. The law recognized not only the procedural guarantees of updating one’s data as contained in manual or physical records, but also recognizing one’s right to update one’s “automated” data – those personal data kept and supplied by any “information service, automated or not.” In this model, the habeas data remedy “may be enforced against automated or digitized records”.

In Argentina, the writ of habeas data is not specifically called “habeas data” but is subsumed by the Argentine writ of amparo. Under Article 43 of the Argentine Constitution, entitled “The Writ of Amparo” or protection, it is stated thus:

“Any person may file this action (referring to the writ of habeas data) to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.”

Puno stated that in Paraguay an action for a writ of habeas data was filed to view police records bringing to light several atrocities that had been committed at that site. In Argentina, the Argentine Supreme Court ruled that the writ of habeas data was available to the families of the deceased in a case involving extralegal killings and enforced disappearances. It gave the victims access to police and military records otherwise closed to them. In essence, the decision established a right to truth.

The “right to truth” is fundamental to citizens of countries in transition to democracy, especially those burdened by legacy of massive human rights violations. This right entitles the families of disappeared persons to know the “totality of truth surrounding the fate of their relatives”. The exercise of the right is particularly crucial in disappearances driven by politics, because they usually involve “secret execution of detainees without any trial, followed by the concealment of the body with the purpose of erasing all material traces of the crime and securing impunity for the perpetrators”.

He stressed that, “truth is the bedrock of all legal systems”, whether the system follows the common law tradition or the civil law tradition. Justice that is not rooted in truth is “injustice in disguise”.

According to Puno, the Supreme Court was studying further how to strengthen the role of the judiciary as “the last bulwark of defense against violation of the constitutional rights of our people especially their right to life and liberty by the use habeas data”.

He expressed the hope that with the help of the writ of habeas corpus, the writ of amparo and the writ of habeas data, the Philippine Judiciary could finally “bring to a close the problem of extralegal killings and enforced disappearances in our country, spectral remains of the Martial Law regime”.

By:

Atty. Manuel J. Laserna Jr.